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Five governors enjoyed eight months of illegalities 'Mike Ozekhome

Published by Daily Trust on Wed, 01 Feb 2012

Constitutional lawyer and legal luminary, Chief Mike Ozekhome SAN, speaks on the Supreme Court decision last Friday. He said he was on his way to court to challenge the swearing in of Alhaji Idris Wada as governor of Kogi State. In this interview with Adelanwa Bamgboye, he speaks on the eligibility of the sacked governors to re-contest elections; the issue of who should be acting governor of Kogi State and what the INEC should do next.Is Wada's election as governor in Kogi State still valid'The election of Wada by the judgment of the Supreme Court of Nigeria (SC) has become null and void and of no effect whatsoever because the election is not sustainable. In fact we are already on our way going to court to challenge Wada's swearing in. Not only should he be thrown out of office, being an usurper of office on behalf of Prince Audu Abubakar but that he should be arrested because an usurper who takes over government is equivalent to a military coup d'etat which is contrary to Section 1 (2) of the 1999 Constitution - that no one shall take over an office except in accordance with the provision of the constitution which is through the ballot box.The SC judgment is clear and that is that even since May 29, 2011, all the five governors - Liyel Imoke, Sylvia, Idris, Wamakko had been in office illegally enjoying an eight months of illegalities. So the SC has nullified that election. What it means is that we have to now resort to Section 191(2) of the constitution which provides that where a governor is removed from office by an order of a court of law, then the Speaker of the House of Representatives of that State shall immediately take over that state as acting governor. And within three months as provided for by the constitution a new election should hold. So in Kogi State by the pronouncement of the SC, a new election must be held and organized by the INEC within three months from last Friday.Incidentally, INEC was the one who went to court against the judgment of the Court of Appeal which was add idem with the judgment of the Federal High court. So INEC will then obey the SC decision which it procured by itself by holding elections in Kogi State three months from last Friday and that means by April 28, 2012 elections must hold in Kogi State so there is no governor in Kogi State except an acting governor who is the Speaker of the House ' Hon. Abdullahi Bello, who has since been sworn-in.Idris Wada should immediately be arrested, if he had not already been arrested, and prosecuted for treasonable felony.Is there any such thing like 'Governor'in'waiting' because he won an election'No, he could have been a governor'in'waiting if the SC decision did not come on Friday. The SC decision is nullifying even his predecessors 8 months illegal occupation. Since the SC has decided that that election itself was illegal. In order words he could not have come back again. It means that the speaker of the House should be sworn-in and election should now be organized within three months. So he cannot be a governor in waiting because you cannot place something on nothing, it will collapse as Lord Denning puts it in the case of Macfoy in 1962 and as affirmed by the SC in Akpene Vs Barclays Bank.Illegality upon illegality can never amount to legality. Idris Wada could not have been a governor-in-waiting because the person he was to succeed, his tenure has been declared null and void even with effect from May 29 last year. Automatically, the elections that held on December 3 , 2011 are consequently null and void and of no effect whatsoever, that is the clear meaning of the SC decision although the SC did not make any consequential order, commonsensically and constitutionally what it does mean is that there was no election at all on 3 December, 2011 and Prince Audu Abubakar will soon challenge that in court.There are five governors that were sacked, apart from Kogi, can the other four sacked governors still re-contest elections'Those of them who had only had one term of four years can re-contest because the last one year has been declared null and void by the SC. In the eye of the law, they spent only four years so under Section 180 (2), those who were first governors can re-contest again because the SC made it clear that they are entitled to eight years, not a day more, but it could be less if they are impeached from office, if they die in office or if they are removed from office by the order of the court, or are insane and can no longer perform the functions of their office.Then it has to be within three months from today, in fact it also means that even the primaries held by the political parties until now are null and void and of no effect whatsoever.The sacked governor who were sworn-in May 29 2007 have already spent eight additional months to their four years, Will they now gain from the illegalities'Yes, eight months of illegalities and usurpation. The SC declared the last eight months as illegal, so they are back to square one to what we call a clean slate ' tabular riser ' meaning that in the eye of the law, they were never there for eight months extra. In order words they were there up to May 29, 2011 when their first terms expired so it means that between then and now, they have been illegally occupying the office, which now means automatically that of course they can re-contest but if it is a two-time governor, he can no longer re-contest.During their eight months of 'illegal' rule, they have made appointments and even passed budget, are these actions not also nullified'No, because government is a continuum. Being a continuum, if you nullify those actions is to undo an entire State; a lot of things will crop up of which nobody will know the end result. It is enough that their tenure has been invalidated but in law actions can be appropriated and legalized under the doctrine of necessity and the doctrine of public policy but if it were for example a demand they are making specifically between that May, 29, 2011 and now the law will say no, you cannot benefit from your acts of illegalities.What should INEC do now'INEC should quickly begin to prepare for elections to be held in the next three months in all the five states affected including Kogi State, because no elections held in Kogi State on 3 December 2011.
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